Rights of Audience: Why a Letting Agent Should Not Act on Behalf of a Landlord in Proceedings
For an individual to appear and conduct proceedings on behalf of a client before the Court, it is necessary that they have the appropriate “rights of audience”. By rights of audience, we mean whether they have the right to represent a client before the Court in which the case is being heard. If a client is acting on their own behalf, they have automatic rights of audience to represent themselves. Barristers and solicitors also have the right to represent clients in Court. A group of individuals who are not awarded such rights, however, are letting agents. A letting agent is a lay individual, only able to represent a client before the Court with express permission from the Judge. In many cases this will be to provide evidence or act as a witness only.
The requirement to have the right to act extends beyond just acting on behalf of a client before the Court. The Legal Services Act 2007 states that the conduct of litigation (the issuing of proceedings before a court) is a reserved legal activity and may only be carried out by an authorised person or an exempt person. The Act lists it as a criminal offence to carry out a reserved legal activity without the appropriate rights, with a maximum sentence of 2 years or a fine or both.
What then amounts to conduct of litigation?
What amounts to conduct of litigation has been unclear until a recent High Court case which has provided much needed clarification. The case of Baxter v Doble & Anor dealt with the issue as to whether Doble, and her firm, had conducted litigation on behalf of their client and, if so, did they have a defence that they did not know their actions amounted to conducting litigation.
The Judge, Justice Cavanagh, found their conduct amounted to conducting litigation, taking into account all the activities carried out by Doble. Whilst Justice Cavanagh expressly stated that giving legal advice, drafting and serving Notices under Section 8 and Section 21, and the service of Notice did not amount to conducting litigation on their own, when considered amongst the other activities carried out, such as the completion of the claim form and particulars of claim, the combination of these activities amounted to conduct of litigation.
This case has clarified what would amount to conducting litigation. Therefore, whilst Doble was able to rely on the defence that they did not believe they were committing an offence, it is unlikely this will be a valid defence anymore. Based on this judgment, besides giving advice and the service of a Section 8 and/or Section 21 Notice, there is not much an agent can do without running the risk of their conduct amounting to conducting litigation.
Should an agent carry out regulated activity, such as completing the claim form and presenting the case in court, the claim could be struck out. Further, the matter could be debarred from being submitted again and the agent could be open to a claim from the landlord for their legal costs. Agents should be aware that they may not be able to make a claim on their professional indemnity insurance as the policy is unlikely to cover the above conduct.
The Doble case goes to reinforce the advice PainSmith has always given. If a landlord wishes to proceed with court action, they may represent themselves as litigants in person or they should instruct a Solicitor to act on their behalf. This not only ensures that the conduct will be considered valid under the Legal Services Act 2007, but it will remove unnecessary delays, or issues and ensures that landlords receive professional advice as well as representation in court.
Published 30 June 2023
